General Organa and the Right of Publicity

By Maximillian (Max) H. Matthies posted 03-23-2020 21:28

  

I have been able to watch every Star Wars film in the same theater in my hometown during the week it was released. I was very anxious to see Rise of Skywalker not just for the promised resolution of plot points, but also for the ending of General Organa’s story in light of Carrie Fisher’s untimely death in 2016, before filming began. Lucasfilm was able to bridge the original Star Wars: A New Hope with Rogue One by adding computer-generated imagery (CGI) versions of a young Princess Leia and Grand Moff Tarkin (Peter Cushing died in 1994). While I enjoyed the continuity trick, I hoped that General Organa would avoid that same fate in Rise of Skywalker.

Hollywood has been using CGI both to “resurrect” dead actors for commercials (Marilyn Monroe, Grace Kelly, and Marlene Dietrich all appeared in a modern Dior commercial with Charlize Theron) as a gimmick (think Forrest Gump) and to complete filming after an actor dies (Fast and Furious franchise with Paul Walker; Mockingjay with Philip Seymour Hoffman). James Dean, who died in 1955, is set to star in a new film called Finding Jack.

There is a lot of money in exploiting postmortem publicity rights. The company holding the rights for James Dean also holds the rights to more than 400 celebrities, athletes, and sports teams. Michael Jackson has been the highest-paid dead celebrity since 2013. In 2019 his estate made $60 million, more than Pink, Justin Timberlake, Billy Joel, or Paul McCartney (who all toured last year).

A celebrity’s ability to exploit their identity and generate massive income for their estate or heirs postmortem depends on which state law applies. California law provides heirs with the right to exploit the dead celebrity’s right of publicity for up to 70 years after death. Cal Civ Code §3344.1. New York State does not recognize a postmortem right of publicity, which means the estate of Marilyn Monroe, who died domiciled in New York, gained nothing from that Dior commercial. In Michigan, there is no statutory right to publicity, and while no Michigan court has opined, the U.S. Court of Appeals for the Sixth Circuit in Herman Miller, Inc v Palazzetti Imports & Exports, Inc, 270 F3d 298 (6th Cir 2001), did say that Michigan would likely recognize a postmortem right to publicity under common law.  

It will be interesting to see how this will play out with Aretha Franklin’s estate. Ms. Franklin was a resident of Michigan and had no will when she died in 2018. She was the Queen of Soul, the first female artist inducted into the Rock & Roll Hall of Fame, a writer of songs, other artists want to sing, and the winner of numerous awards. The commercial exploitation of her name, image, and likeness would likely be a boon for her very troubled estate.

Living celebrities should spend time thinking about how their likeness will be used, where their likeness will be used, and how—not just during negotiations for new projects, but even after death. Then they should formalize that decision by analog means in an estate plan or licensing agreement, or by having their likeness digitally preserved.

 

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